Caruana Curran’s legacy

If Malta needed an exemplar of the doctrine of the separation of powers, which posits an independent judiciary in relation to the executive and the legislature for a democracy to survive, its supreme embodiment and role model in Maltese history would be the late Mr Justice Maurice Caruana Curran (1918-2015).  

This gentleman judge was involved in many spheres of activity – from sports to heritage – but his most didactic and lasting legacy to posterity will be that of a courageous, inspired and impartial judge, often in the face of hostility and adversity by the executive during the 1970s and 1980s.

Courage and integrity are only measured in relation to intimidation borne of fear, harassment and arm-twisting, of which this country’s judiciary had a belly-full in Mintoff’s time, with one justice minister after another too weak to stand up to be counted. However, not everybody was prepared ‘conveniently’ to abandon principles of right and duty, to which loyalty had been sworn by oath of office. 

In one comment in the blogs on a news item announcing his death (11 March, 2015) Karm Farrugia evocatively noted thus: ‘I can never forget his grief on hearing about his young daughter’s tragic death in St Paul’s Bay during an Arbitration Tribunal sitting. For several years I was a member of that tribunal: I can vouch for Maurice’s total integrity.’

When Caruana Curran and his jury acquitted the Cachia Zammit brothers, an unruly mob attacked the judge’s residence in Valletta on 15 November, 1972. Anti-jury slogans were scribbled on walls and the family insulted. This was unprecedented, as the Chamber of Advocates rightly observed. Worse still, none of the culprits was brought to book.

Sadly for citizenship and freedom, that was the dawn of an era when the likes of Bondin il-Fusellu, Bartolo il-Qahbu, Carabott it-Toto’, il-Qattus, il-Pupa, Pappalardu and other such criminal ragamuffins would often, repeatedly, take the law into their own hands with impunity, until Alfred Sant mercifully and to his eternal credit sent them all packing once and for all when he became MLP leader on 26 March, 1992. 

Until then our judiciary had to operate in that climate. Some, like Caruana Curran, said ‘we are not afraid’; others were less bold or heroic, failing the test in the exercise of their supposed functions. 

Much the same had occurred in colonial times, with shining exceptions such as Mr Justice Anthony Montanaro Gauci, a former Stricklandian deputy, during the ‘anti-Italian’ witch hunts of 1940-1946, culminating in deportation without charge or trial. When the so-called ‘pater patriae’, Fortunato Mizzi, died in 1905, only one member of the bench (Zaccaria Roncali) was man enough to attend his funeral. That was in the heyday of colonialism, when Malta’s representative government constitution had been revoked altogether.  

In other words, although comparisons vary, the stances taken by Caruana Curran and some other Maltese judges in Mintoff’s turbulent times, must also be seen in an historical context, when fear seems to have seeped into the bone.

In Caruana Curran’s case after 1964, Malta was constituted as an independent sovereign state, but what mattered above all was the application in practice of enunciated constitutional norms, or otherwise. Albert Borg Olivier de Puget once said in Parliament that if a constitution is not observed it would be just a piece of paper.

In his documented expose’ Is Malta Burning (1981) Michael Frendo referred to the case against the Electoral Commission to invalidate the 1976 general election result on the seventh electoral district due to violence and intimidation. (I myself recall one incident when an axe had smashed through the windscreen of Gudio de Marco’s car as he arrived at St Vincent de Paul home for the elderly.)

Mintoff got directly involved in this. Following a preliminary judgement not to the government’s liking, two of the three judges hearing the case – Caruana Curran and Victor Sammut – were removed and by presidential decree allotted duties in other courts. Following other preliminary judgements in cases relating to broadcasting and trade unions, Caruana Curran was sent off to the Second Hall of the Civil Court. 

When the Vice-President of the Constitutional Court retired in 1972 he was not replaced, rendering that all-important Court impotent until 1974, at a time of impending constitutional changes. Caruana Curran soldiered on as best he could and history will remember him for that.

In so far as jurisprudence is concerned, the late judge should also be credited with some seminal justice-driven judgements. One of these concerned the judicial review of administrative decisions, that is the denting of retroactively-decided administrative powers in cases where decisions concerning third parties had already been settled and delivered according to law, and the implication of such reversals for liability.

In John Lowell vs Carmelo Caruana (14 August, 1972), it was ruled that a minister on the strength of what lawyers call ‘jure imperii’ could not revoke a legal permit for a building to a company (CPL Developments Ltd in a property at Ta’ Xbiex). In doing do the PAPB (a predecessor of MEPA) had gone beyond its powers.

Kevin Aquilina delved into such law-administration tensions and practices in the Bank of Valletta Review (No. 34, Autumn 2006), basically arguing that law was meant to induce certainty.

In my experience that ‘revocation’ as to the number of storeys in that construction was tantamount to an irrevocable title issued legally under a prevailing Land Registration Act, prior to purchase, being changed by some administrative luminary for reasons best known to himself. 

Other noteworthy work by Caruana Curran is related to prisoners and the ill-treatment of offenders, including the suspended sentence.

Shortly after Independence, in 1965, Caruana Curran took the initiative to set up Malta’s first national heritage trust, Din l-Art Helwa, which went on to win a Europa Nostra award, and which his daughter Simone Mizzi now ably leads.

As today everyone knows, this voluntary society has been instrumental in scores of restoration and conservation projects as well as in the campaign to protect our countryside, artistic, architectural and historical heritage, as well as to host pertinent public lectures.

This is perhaps a more tangible legacy, if not a more important one juridically and historically.

After 1987 the judge chaired the Medical Council and then served as Chancellor of the University of Malta from 1988 to 1995, that is just after the 1988 Education Act had been passed. He was a stickler for the terms of the law, although a law which ‘refounded’ the University had also abolished traditional chairs and professorial norms without clear credentials, qualifications, seniority or rotation.

When I once wrote to him with a grievance concerning the selection of headships he had returned my letter back to me tale quale with a note saying how much he respected me as a historian ‘and indeed as a historiographer’, but clearly without being able or willing to do anything about it. 

In truth, executive university powers are vested more in the vice-chancellor or rector than in the chancellor, a rank which Caruana Curran always filled with dignity and due pomp – as he did every other role before and during his 20 years as a serving judge, and later still.